State of the Web: Which vision of an ‘open Internet’ would you fight for?

The battle for the open Web may be upon us, but it’s also impossible to win — a quagmire that puts even the ill-fated “War on Terrorism” to shame. At least, that is the craggy conclusion I keep tripping over with each step I take down the jagged path of Internet openness.

This is not to say that we Netizens should lay down arms and wave our white flags. Rather, we must accept the hardships that lay ahead, and realize that victory in this Game of Cyberspace looks nothing like a clean fight with a definitive end. Entrenched interests lie in wait at every pass. Double agents abound. Allies in the fracas to keep the Internet free have opposing goals. Even getting a handle on this obstacle-strewn battlefield can be complex.

As Lawrence Lessig, a law professor at Harvard University and one of the open Internet’s most decorated veterans, explains, the Internet is separated into three “layers,” each of which has unique inherent characteristics, and thus different vulnerabilities.

At the Internet’s “core” is an end-to-end design, says Lessig, which was intentionally built to be entirely neutral, so that its purpose would not be constrained. Just as any car may drive down a highway, so too may any packet of data travel across the network of the Internet.

“If we can think of the network as built in layers, then the end-to-end design was created by a set of protocols implemented at the middle layer — what we might call the logical or code layer of the Internet,” wrote Lessig in Foreign Policy back in 2001. “Below the code layer is a physical layer (computers and the wires that link them). Above the code layer is a content layer (material that gets served across the network).”

At each of these levels, battles for control are under way. Let’s start from the bottom layer and move up from there.

Open Internet vs. Open Internet

The physical layer of the Internet is owned by a tight cabal of powerful corporations that includes behemoths like AT&T and Verizon Communications. During the 1990s, when most Internet users logged on through telephone lines, the U.S. government declared that the companies that controlled this physical layer could not control the types of technologies that connected to their lines. This allowed modems, rather than telephones, to connect computer users to the growing Internet.

This guarantee of neutrality diminished with the rise of broadband Internet access, which is controlled by an entirely different set of government rules. In an attempt to re-level the playing field, the Federal Communications Commission established a set of Net neutrality rules, which mandate that the companies controlling the physical layer of the Internet may not block access to devices, nor may they throttle access speeds as they please.

As you may already know, the FCC’s Net neutrality rules — established under the ethos of “preserving the open Internet” — have come under intense fire. The broadband industry argues that the FCC has no jurisdiction over the broadband Internet, and therefore; its Net neutrality rules are invalid.

But it is not just companies like Verizon going after Net neutrality; some of the same people who claim to fight for the “open Internet” also say that the FCC’s rules are unconstitutional, since Congress has not yet awarded the agency the power to impose such rules. The anti-neutrality crowd mostly includes libertarian groups, like TechFreedom, The Competitive Enterprise Institute, and the Cato Institute, as well as politicians like Sen. Rand Paul (R-KY) and his father, Rep. Ron Paul.

In their eyes, “Internet freedom” means allowing businesses to do as they please with the Web — free market, unabated by government regulation. This “open Internet” philosophy, while more clear cut, often opposes the “open Internet” philosophy espoused by the FCC and Internet evangelists, like TCP/IP creator Vint Cerf, who sees government regulation as a positive force when it is used to protect citizens’ from fettered access to the Internet.

This disagreement over the definition of the “open Internet” came into full view recently with the publication of two versions of a “Declaration of Internet Freedom.” The first version, proposed by a group of more than 90 organizations that includes Free Press, Mozilla, the ACLU, and the Center for Democracy and Technology, cited “universal access to fast and affordable networks” as one of its five primary principles. On the same day, TechFreedom and The Competitive Enterprise released their own “Declaration of Internet Freedom,” and criticized the former for “enshrining particular consumer preferences.”

So even those who claim to fight for the “open Internet” can’t agree what that ideal means. The lines between these two factions were blurred during the fight over SOPA and PIPA because everyone (aside from the entertainment industry) agreed that the legislation was bad for the Internet ecosystem, businesses and users included. But new battles, like the fight over Net neutrality, expose the cracks in the “open Internet” movement.

Code layer

Moving up Lessig’s ladder, we arrive at the code layer, which is also under attack. Certain member states of the United Nations want to transfer the governing power of the Internet from nonprofit, nongovernmental organizations like the Internet Engineering Task Force, which sets Web standards, to the International Telecommunications Union, an arm of the UN. Unlike on the physical layer, the “open Internet” camps and Members of Congress on both sides of the aisle are all in agreement: Governments like Russia and China, which have a history of clamping down on both business and citizens, should not have more say in how the Internet operates, which is what would presumably happen if the ITU gains more power.

Walled off

Finally, we arrive at the top layer of the Internet: the Web itself. Here, we have an inconceivable mishmash of sides. In the U.S. and much of the world, the Web is more or less open and free. Anyone can make a website or service and make it available on the Web. In turn, anyone can visit nearly any website. When many people think of the “open Internet,” I would guess that this layer is mostly what they have in mind.

Here too the ideal of openness faces enemies. SOPA and PIPA were an example of an attempt to close the Web, by blocking access to foreign websites accused of copyright infringement through the use of DNS-blocking, a function that happens at the code level. Other types of content, like child pornography, are also forbidden on this level — though few if any “open Internet” warriors will seriously challenge this area of blockage.

The most dangerous enemy here, however, may be the rise so-called walled garden. Services like Facebook have built their own barriers. But the rise of the mobile Web and services that are only accessible through self-contained apps pose their own threat to the openness of the Web. Apple further exacerbates this problem by tightly controlling which apps may be made available through its App Store. The benefit of a walled garden is that the information therein poses less of a risk to users. The threat is that someone besides the users themselves — companies like Apple — have the control.

Last word

I would love to offer a simple, end-all solution to this problem. But obviously, I cannot. The battle for the open Internet and the open Web is far more complex than simply pushing back against bad bills like SOPA. You must decide which principles you stand for, and understand that those fighting for the “open Internet” might not be taking a stand for the same philosophy you believe.

The path forward is as jumbled, shadowy, and curved as life itself. The only thing any of us can do now is to grab a good flashlight, slap on a pair of boots, and muster the will to go on.